[Cite as State ex rel. Wasserman v. Fremont, 2013-Ohio-762.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
State of Ohio, ex rel. Stanley J. Court of Appeals No. S-10-031 Wasserman and State of Ohio, ex rel. Kathryn A. Wasserman Relators v. City of Fremont and Terry Overmyer DECISION AND JUDGMENT Respondents Decided: February 20, 2013
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Corey J. Speweik, Nathan T. Oswald, and J. Douglas Ruck, for relators. James F. Melle, Law Director, City of Fremont, for respondents.
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OSOWIK, J.
{¶ 1} On June 25, 2010, relators, Stanley and Kathryn Wasserman, filed a petition
for a writ of mandamus against respondents, the city of Fremont, Ohio, and Fremont’s
Mayor, Terry Overmeyer. In the petition, relators asked this court to order respondents to
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commence an eminent domain action to compensate relators for the partial taking of an
easement that provided drainage of excess water from relators’ property, across property
owned by the city of Fremont, and into nearby Minnow Creek.1
{¶ 2} On July 20, 2010, we issued an alternative writ, in which we asked
respondents to either commence eminent domain proceedings or show cause as to why
they have not done so. Respondents filed a motion to dismiss on August 6, 2010, which
we denied on January 18, 2011. Thereafter, briefs were filed by both parties.
{¶ 3} On March 14, 2011, we issued a decision in which we held that:
(1) relators’ mandamus action was properly before this court, and (2) relators had alleged
a taking which, if proved, would be compensable through an eminent domain action.
State ex rel. Wasserman v. Fremont, 6th Dist. No. S-10-031, 2011-Ohio-1269, ¶ 7
(Jan. 18, 2011), citing State ex rel. Wasserman v. City of Fremont, 6th Dist. No. S-10-
031, overruled on other grounds by State ex rel. Wasserman v. Fremont, 131 Ohio St.3d
52, 960 N.E.2d 449, 2012-Ohio-27. (Additional citations omitted.) Accordingly, we
granted relators’ request for mandamus and ordered respondents to “commence eminent
domain proceedings to determine if a taking has occurred and what, if any, compensation
is due to relators.” Id. at ¶ 9.
{¶ 4} On January 10, 2012, the Ohio Supreme Court held that this court erred by
granting a writ of mandamus without first determining that a taking had occurred.
1 The facts in this mandamus action are more fully set forth in our decision issued on January 18, 2011, which is attached hereto as Appendix A.
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Consequently, the court reversed our decision and remanded the case for further
proceedings. State ex rel. Wasserman, at ¶ 4. After the case was remanded, both parties
filed merit briefs and supporting evidence.
{¶ 5} On remand, relators argue that, due to respondents’ actions, they suffered a
taking of both their drainage chattels and their easement appurtenant across respondents’
real estate. Attached to relators’ brief are photographs of the farmland, taken after
respondents removed the two 8-inch perforated drainage tiles from relators’ easement and
replaced them with one 12-inch non-perforated tile. Those photographs depict flooding
in relators’ fields and at the catch-basin and exit point of the 12-inch drainage tile. Also
shown in a photograph are the 8-inch lines after respondents removed them from the
ground.
{¶ 6} Relators’ other exhibits include affidavits by Stanley Wasserman, Gary
Pfeiffer and Joseph Picciuto. In his affidavit, Wasserman authenticates the photographs
attached to relators’ merit brief and further states that, in August 2005, relators paid a
portion of the cost, $7,538.76, to install the 8-inch drainage tile. Pfeiffer states in his
affidavit that he is a certified appraiser and that, in his opinion, productivity is a key
factor in valuing farmland, and that “drainage systems almost always result in greater
agricultural productivity.”
{¶ 7} Picciuto stated in his affidavit that he oversaw installation of the two 8-inch
tile lines in 2005. Picciuto further stated that he inspected respondents’ property on
February 20, 2012, and found that those lines were no longer in existence, and that he
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observed “debris” from the 8-inch lines on the bank of the reservoir being constructed on
the property. Picciuto further stated that respondents had installed a 12-inch tile line with
a catch basin at its beginning and also at its outlet into Minnow Creek, which was
approximately “one hundred to five hundred feet north of where the two 8-inch tile lines
had existed.” Picciuto stated that, in his opinion, the 12-inch line does not drain relators’
farmland as effectively as the two 8-inch lines and, as a result, the ability of relators’ land
to drain excess water into Minnow Creek has been “significantly diminished.”
{¶ 8} In their merit brief, respondents argue that relators cannot show by clear and
convincing evidence that a physical taking occurred. In support, respondents assert that
relators’ land was prone to flooding before the 8-inch drainage lines were removed, and
that respondents have made every effort to preserve and protect relators’ easement.
Respondents also assert that the 12-inch drainage pipe has “12%” more capacity to hold
runoff than the two 8-inch tiles, and that the new line has “exactly the same ingress and
egress points with the same elevation” as the prior lines. Respondents also assert that the
photos attached to relators’ merit brief do not prove that a taking occurred because they
are not time-stamped, and they were taken immediately after three inches of rain fell on
relators’ field. Attached to respondents’ merit brief are copies of respondents’ deed to
the property on which the reservoir was constructed, the document executed by George
Guth and Roberta Kenney in 1915 which established relators’ easement over the
property, and invoices for the installation of the two 8-inch drainage tiles in 2005 and the
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12-inch replacement line in 2009. Also attached are affidavits of Christopher Grover,
Jerry O’Kenka, Harry Mylander, John Kuzma, and Rick Galford.
{¶ 9} Grover stated in his affidavit that he is a retired engineer who was employed
by the city of Fremont until October 2010. Grover stated that he was an “engineering
technician” during “all relevant times involved in this matter.” Grover further stated that,
in 1915, an easement was established that allowed relators to drain water from their
farmland, using a system of field tiles that connected to a 12-inch drainage tile that
eventually drained into Minnow Creek, after running through adjacent property that was
purchased by the city of Fremont in 2002. Grover stated that relators constructed a lift
station sometime between 2002 and 2005 and that, in 2005, the city and relators jointly
paid to replace the 12-inch line with two perforated 8-inch lines. However, even after the
lift station was installed and the lines were replaced, storm water continued to accumulate
on relators’ property after a heavy rain. Grover stated that the two 8-inch tiles were
removed and replaced with a non-perforated 12-inch line in June 2009. He stated that the
replacement pipe was “rerouted * * * to remove it from [an] area intended to construct
the reservoir embankment and basin.” He further stated that the line was not perforated
because the city no longer needed to drain its own parcel, which is now dominated by the
newly constructed reservoir.
{¶ 10} Jerry O’Kenka stated in his affidavit that, as an employee of Unilliance
from 1976 until March 1, 2010, he helped to construct the reservoir, and that Stanley
Wasserman was not present when the 8-inch drainage lines were replaced with a 12-inch
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line. O’Kenka further stated that, “[i]n order to construct the reservoir as designed, it was
necessary to reroute the two 8” drainage tiles.” He stated that the new 12-inch drain was
connected to the same origination point as the two 8-inch lines, and that a catch-basin
was installed at that location “to allow the flow of water from the Wasserman property to
be monitored.” However, the new 12-inch pipe ended at a few feet away from where the
two 8-inch lines had discharged water into Minnow Creek. O’Kenka stated that, all along
the new drainage route, the elevation of the 12-inch pipe was the same as that of the two
8-inch pipes. He further stated that the capacity of the 12-inch, smooth-walled tile
exceeds the carrying capacity of the two 8-inch lines. O’Kenka stated that, as of
March 1, 2010, he became a city employee, and was made manager of the reservoir
project. He further stated that the “No Trespassing” signs on the city’s property were
posted to protect recently seeded ground and to “help eliminate any further damage” to
the property.
{¶ 11} Harry Mylander stated in his affidavit that he is the owner of Unilliance,
Inc., the contractor hired to construct the reservoir. Mylander stated that, on June 1,
2009, he observed as his crew exposed the two 8-inch drainage pipes, which appeared to
functioning normally. He further stated that Unilliance workers removed the two tiles
and replaced them with one 12-inch pipe, which they connected to the same ingress and
egress points as the 8-inch tiles.
{¶ 12} John Kuzma stated in his affidavit that he was employed by the city of
Fremont as an engineer from April 15, 1985, until December 13, 2011. Kuzma stated
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that the two 8-inch pipes were replaced because they “ran through the intended reservoir
site, whereas the 12” drainage pipe was constructed along the perimeter of the city
property outside of the reservoir construction.” Kuzma further stated that “Stanley
Wasserman was present on several occasions to inspect the repair of the two 8” plastic
tiles and the installation of the 12” HDPE (High Density Polyethylene) drainage pipe in
mid-May and early June, 2009.”
{¶ 13} Rich Galford stated in his affidavit that he was project manager for
Unilliance in 2009. Galford stated that he was present when the two 8-inch lines were
replaced with one 12-inch line, and that the “same ditch was used for the egress for both
the two 8” tiles and the 12” HDPE pipe.”
{¶ 14} In a reply brief, relators argue that respondents wrongly attempted to
convince this court that relators are seeking compensation for flood damage to their
property. Instead, relators state that the alleged taking in this case was due to the physical
removal of their drainage chattels and the relocation of the drainage lines due to the
obliteration of the original easement by the newly constructed reservoir. In support,
relators refer to Kuzma’s affidavit, in which he stated that the 12-inch line had to be
routed around the edge of respondents’ property because relators’ 8-inch lines ran
through the site of the new reservoir. Relators also referred to O’Kenka’s affidavit, in
which he stated that the two perforated 8-inch lines were removed and replaced with one
smooth 12-inch line.
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{¶ 15} Relators also attached Stanley Wasserman’s affidavit to their reply, in
which he stated that the two 8-inch drainage lines were destroyed, and the pathway for
the new 12-inch line was relocated, without relators’ knowledge or consent. Stanley
Wasserman also stated that he took the photographs that were attached to relators’ merit
brief. Each photograph was then described in detail. Specifically, Stanley Wasserman
states that the photographs labeled exhibits B, C, and E all demonstrate that the two 8-
inch drainage tiles were impaired on or before June 1, 2009, as a result of respondents’
construction of the reservoir. Stanley Wasserman also states that exhibits F, G and H
show heavy construction equipment used to construct the reservoir sitting on relators’
property, which he states could reasonably have caused the two 8-inch lines, as well as
the 13 laterally placed clay lines that drained into them, to collapse. Stanley Wasserman
also identifies photographic exhibit J as depicting broken pieces of the two 8-inch tiles on
June 15, 2009, after they were removed by respondents’ contractor. Stanley Wasserman
further identifies photographic exhibits K and L, which show the non-perforated 12-inch
pipe engulfed by water that was draining into Minnow Creek, and additional
photographic exhibits depicting both flooding in relators’ field allegedly caused by
blocked or broken drainage tile, and the “No Trespassing” sign on respondents’ property.
The affidavit also contains Stanley Wasserman’s conclusions that the 12-inch tile is not
capable of carrying an increased load, contrary to opinions expressed by Kuzma, because
it is improperly designed and does not disperse the run-off from relators’ field in a
manner similar to the previous 8-inch lines that respondents removed.
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{¶ 16} In a surrebuttal brief, respondents argue that they did not “take” relators’
easement because the original easement “was not based on a metes and bounds
description but rather was designed for drainage purposes and to allow egress into the
creek.” Accordingly, respondents conclude that no taking has occurred even though the
12-inch pipe follows a completely different path than the original drainage lines, because
it has the same ingress and egress points as the 8-inch lines that were replaced.
Respondents further argue that the “No Trespassing” signs on their property are not
meant to deny relators access to maintain the re-routed easement. Finally, respondents
argue that relators have another adequate remedy at law through a tort action and,
therefore, mandamus is not available in this instance.
{¶ 17} The rights to acquire, use, enjoy and dispose of private property “are
among the most revered in our law and traditions.” Norwood v. Horney, 110 Ohio St.3d
353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 34. Accordingly, both “[t]he United States
and Ohio Constitutions guarantee that private property shall not be taken for public use
without just compensation.” State ex rel. Shemo v. Mayfield Hts., 95 Ohio St.3d 59, 63,
2002-Ohio-1627, 765 N.E.2d 345, citing Fifth and Fourteenth Amendments to the United
States Constitution; Section 19, Article I, Ohio Constitution. Compensation is required
for a physical taking of private property because it “‘eviscerates the owner’s right to
exclude others from entering and use [his or] her property – perhaps the most
fundamental of all property interests.’” State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d
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385, 2010-Ohio-1473, 928 N.E.2d 706, ¶ 24, quoting Lingle v. Chevron U.S.A., Inc., 54
U.S. 528, 539, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005).
{¶ 18} The Ohio Supreme Court has held that “mandamus is the appropriate action
to compel public authorities to institute appropriation proceedings where an involuntary
taking of private property is alleged.” State ex rel. Wasserman, 131 Ohio St.3d 52, 2012-
Ohio-27, 960 N.E.2d 449, ¶ 2, citing State ex rel. Shemo, supra. The party claiming
entitlement to a writ of mandamus in an appropriation proceeding must establish by clear
and convincing evidence “that a taking of their property by a public authority has
occurred.” Id. at ¶ 3-4. In order to establish that such a taking has occurred, “a
landowner must demonstrate a substantial or unreasonable interference with a property
right. Such interference may involve the actual physical taking of real property, or it may
include the deprivation of an intangible interest in the premises.” (Other citations
omitted.) State ex rel. OTR v. Columbus, 76 Ohio St.3d 203, 206, 667 N.E.2d 8 (1996).
In this case, the private property that has allegedly been taken is an easement
across respondents’ property. “An easement has been defined as an interest in the land of
another created by prescription or express or implied grant, which entitles the owner of
the easement to a limited use of the land in which the interest exists * * *.” (Citations
omitted.) Myers v. McCoy, 5th Dist. No. 2004CAE07059, 2005-Ohio-2171, ¶ 16. “The
owner of the easement is referred to as the dominant estate and the land in which the
interest exists is called the servient estate.” Id. Ohio courts have held that “[t]he value of
an appurtenant easement is compensable in an appropriation action.” Cincinnati
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Entertainment Assoc., Ltd. v. Hamilton Cty. Bd. of Commrs., 141 Ohio App.3d 803, 812,
753 N.E.2d. 884 (1st Dist.2001).
{¶ 19} The document executed in 1915 which established relators’ easement
(“easement agreement”) states that relators’ predecessor in interest, George H. Guth,
would have the right to construct and maintain a 12-inch field tile drain
from the west line of said lands of said Robertina McKenney through the
said lands, on lines and at a depth to be fixed by her or her agents, and
emptying into said [Minnow] creek at a point about fifty (50) feet south
east of the point where said creek crosses said right of way and enters her
lands * * *.
{¶ 20} The importance of drainage of both the dominant and servient parcels was
implied in the easement agreement, which limited relators to draining no more than 70
acres through the drainage tile, and also limited McKenney and her successors to draining
no more than “35 acres of any land of hers into said 12 inch tile drain.”
{¶ 21} It is undisputed that, although relators and respondents jointly replaced the
original 12-inch clay tile with two 8-inch perforated tiles in 2005, they did not alter the
route of the drainage line from the original path chosen by Robertina McKenney in 1915
until 2009, when respondents unilaterally dug up the two 8-inch perforated tiles in
preparation for constructing a reservoir to serve the city of Fremont. The record contains
evidence that the reservoir was constructed across the original path of relators’ drainage
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easement, and that respondents moved the drainage tile to the edge of respondents’
property, thereby obliterating the path of the original easement.
{¶ 22} Evidence was also presented that, even though the ingress and egress points
of the new drainage line remained substantially the same, the two 8-inch tiles which the
parties installed by mutual agreement in 2005 were destroyed and replaced in 2009 by
one 12-inch, non-perforated tile. Because it has smooth walls, the 12-inch tile is
incapable of draining any portion of respondents’ property of excess water, therefore the
flow and disbursement of runoff water across both properties was changed. Significantly,
respondents’ own witness, Christopher Grover, stated in his affidavit that the relocation
of the drainage tile is of no consequence to respondents because drainage of their land for
agricultural purposes is no longer needed.
{¶ 23} On consideration of the entire record in this case, we find that relators have
shown by clear and convincing evidence that a taking of the easement established by the
1915 easement agreement occurred when respondents unilaterally removed the two 8-
inch perforated drainage tiles and destroyed the pathway of the 1915 easement in order to
construct a reservoir for the city of Fremont.2 This conclusion is not affected by
respondents’ replacement of the two 8-inch drainage tiles with a 12-inch line and the
subsequent relocation of that line. Such actions, and any subsequent increase in water
2 The evidence which supports a taking in this case does not include the posting of a “No Trespassing” sign on respondents’ property, since relators presented no evidence, beyond speculation, that respondents intended to exclude them from entering onto the property and respondents presented a reasonable explanation as to why the sign was posted.
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accumulation on relators’ land as a result, go to the issue of damages and not whether a
taking occurred in the first place. See Richley v. Bowling, 34 Ohio App.2d 200, 207, 299
N.E.2d 288 (3d Dist.1972). Pursuant to R.C. 2731.07, we hereby issue a writ of
mandamus and order respondents to commence eminent domain proceedings within 90
days to determine what, if any, compensation is due to relators.
{¶ 24} Writ granted. Costs assessed to respondents.
{¶ 25} To the clerk: Manner of Service
{¶ 26} The sheriff of Sandusky County shall immediately serve, upon the
respondents by personal service, a copy of this writ in a manner pursuant to R.C.
2731.08. The clerk is directed to immediately serve upon all other parties a copy of this
writ in a manner prescribed by Civ.R. 5(B).
{¶ 27} It is so ordered.
Petition granted.
Mark L. Pietrykowski, J. _______________________________
JUDGE Arlene Singer, P.J.
_______________________________ Thomas J. Osowik, J. JUDGE CONCUR.
_______________________________ JUDGE
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This decision is subject to further editing by the Supreme Court of
Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.